(Guest)

Res judicata hma 25 and crpc 125

If wife has already filed divorce with HMA 25. And later on files crpc 125.

Will res judicata apply?

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4 Replies

Varinder Malik (Advocate) 22 July 2012

Proceedings under HIndu Marriage Act and Proccedings under Criminal procedure code are different. One can file application under section 24 &n 25 simultaneously along with 125 crpc... there is no resjudicata...amount get adjusted in both.

Tajobsindia (Senior Partner ) 22 July 2012

Interesting but a "un-tried" question of Law whose "minority reply" I will attempt to give in slightly off beat way for further discussion by subject experts if any;

1. If permanent alimony is granted under S. 25 HMA then she is not allowed to continue under S. 125 CrPC - D HC views so

2. Wife cannot be allowed multiple maintenance - Patna HC, Calcutta HC, D HC P & H, Guj. HC, Mumbai HC as well as SC views so

3. Maint. in one case is set off in another - almost most HC including SC has said so.

4. If wife refuses to stay with husband in S. 125 CrPC then S. 125 crPC gets rejected - Many HC including SC have said so.

5. What you are claiming is constructive res judicata; In a recently reported decision [ref.: Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. & Ors., AIR 2010 SC 818], the Supreme Court has explained the doctrine of constructive res judicata as applicable in Indian law. A sub-set of the doctrine of res judicata, emanating from S. 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings.

Which I find very interesting fodder for husband(s) to contest such multiple cases, worth trying for. But my above views "application to this brief" are "minority" views here.

(Guest)

There is a judgement in bombay HC which says parallel proceedings can not be allowed.

Equivalent citations: 1992 CriLJ 1845

Bench: B Wahane

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991

17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.

(Guest)

One more by chennai HC.

Madras High Court

G. Ramanathan vs Revathy on 16 March, 1989

Bench: D Annoussamy

4. When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the Civil Court which is already seized. Further under S. 127 of the Cr.P.C. if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore come to the conclusion that the institution of a proceeding under S. 125, Cr.P.C. when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap. IX of the Cr.P.C.